By Saïla Ouald-Chaib and Valeska David
On 14 March 2017, the European Court of Justice issued two judgments, in the cases of Achbita and Bougnaoui concerning the manifestation of beliefs in the private workplace. From the perspective of inclusion and human rights law, the judgments are very disappointing. They basically legitimize and even provide a recipe for discrimination of employees on the basis of their religious or other convictions. Continue reading
In this second post on Eweida and Others v. the United Kingdom, I deal with the conflict between freedom of religion (or the prohibition of indirect discrimination on the basis of religion, if you so wish) and the prohibition of discrimination on the basis of sexual orientation (or an employer’s interest in upholding equality and diversity policies, if you so wish) in the cases of Ms. Ladele and Mr. McFarlane.
There were many reasons to be excited about an ECtHR ruling in the cases of Ladele and McFarlane. Many reasons to find both cases intriguing and challenging. And as many reasons to be disappointed with the astonishingly brief and extremely deferential reasoning the Court eventually delivered. In this post, I aim to lay bare some of the main shortcomings of the Court’s reasoning, without necessarily challenging the outcome of the case.
I will focus almost exclusively on Ms. Ladele’s case. The case of Mr. McFarlane will largely be left aside, both for reasons of space and because his case is less challenging than Ms. Ladele’s case.
Eweida and Others v. the United Kingdom is probably one of the most awaited freedom of religion judgments of recent times. Twelve third parties intervened in the case. The judgment in fact covers four big cases brought by Christian applicants, complaining that they had suffered religious discrimination at work. This week and next week, the Strasbourg Observers will give the judgment the attention it deserves. In this post, I will stick to the general Article 9 principles of the judgment and to their application to the cases of Ms. Eweida and Ms. Chaplin. Next week, we will focus on McFarlane and Ladele.
The Court’s Article 9 reasoning is praiseworthy for several reasons. First, the Court offers a clear analysis of what counts as “manifestation of religion or belief.” Then, the Court refuses to quickly dismiss the freedom of religion complaints at the interference stage, leaving behind the freedom to resign doctrine. Moreover, in Eweida and Chaplin, the Court shows a strong concern for what is at stake for applicants manifesting their religion at work in the balancing stage. In essence, all this shows that the Court takes freedom of religion more seriously.
